00-004116EC In Re: Donald James vs. * Status: Closed Recommended Order on Monday, August 27, 2001.

Summary: Respondent accused of violating anti-nepotism statute and misuse of public position.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: DONALD JAMES, )

)

Respondent. ) Case No. 00-4116EC

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly-designated Administrative Law Judge,

Jeff B. Clark, held a formal hearing in the above-styled case in

Miami, Florida, April 11-13, 2001.

APPEARANCES

For Advocate : James H. Peterson, III, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

For Respondent : David Rothman, Esquire

Jeanie Melendez, Esquire

Thornton & Rothman, P.A.

200 South Biscayne Boulevard

First Union Financial Center, Suite 2690

Miami, Florida 33131

STATEMENT OF THE ISSUES

The issues for determination are : Whether Respondent, as

the Division Chief of the Emergency Medical Services Division

for the Miami Dade Fire and Rescue Department, violated

Subsections 112.3135(2)(a) and 112.313(6), Florida Statutes, by

advocating for the appointment, employment, promotion or

advancement, of his brother within that Department, and, if so,

what is the appropriate penalty.

PRELIMINARY STATEMENT

On June 6, 2000, the Florida Commission on Ethics issued an

order finding probable cause to believe that Respondent,

Donald James, while a Division Chief of the Emergency Medical

Services Division for the Miami Dade Fire and Rescue Department

(the "Department"), violated Subsection 112.313(6), Florida

Statutes, by advocating for his brother to be selected for a

position in the Department. Additionally, the Florida

Commission on Ethics found that there was probable cause to

believe that Respondent violated Subsection 112.3135(2)(a),

Florida Statutes, by advocating the appointment, employment,

promotion, or advancement of his brother in or to a position in

the Department in which he was serving or over which he

exercised jurisdiction or control.

The case was forwarded to the Division of Administrative

Hearings for assignment to an Administrative Law Judge on or

about October 5, 2000. On October 18, 2000, the case was set

for final hearing on January 23-25, 2001; reset for January 17-

19, 2001; and, after a motion for continuance, set for final

hearing on April 11-13, 2001.

At the final hearing, the Advocate called eight witnesses:

David James, Robert David Paulison, Patricia Frosch, James J.

Brown, John Moore, Stan Hills, Gary Rainey, and Respondent,

Donald James. The Advocate offered 21 exhibits, AE1-AE21, that

were received into evidence. The Advocate also offered the

deposition of Respondent, AE22, but the deposition was not

admitted into evidence. Respondent testified on his own behalf

and offered fourteen exhibits; five of Respondent's exhibits,

RE1-2, RE4-6, were received into evidence, but Respondent’s

Exhibits RE3 and RE7-RE14 were not received into evidence.

The Transcript of the final hearing was filed on May 23,

2001. It was agreed at the close of the final hearing that

proposed recommended orders would be filed by July 31, 2001.

Both parties filed Proposed Recommended Orders.

FINDINGS OF FACT

1. The Department is a department within Miami-Dade

County, and Respondent, as an employee of the Department, is a

Miami-Dade County employee paid by Miami-Dade County (“County”).

2. Respondent has been an employee of the Department for

approximately 25 years.

3. In February and March 1999, Respondent was Division

Chief of the Emergency Medical Services Division for the

Department. He was transferred to the Communications Division,

effective April 5, 1999, where he currently serves as Division

Chief of Communications for the Department.

4. Respondent is currently an employee of an “agency” and

was an employee of an “agency” within the meaning of the Code of

Ethics for Public Officers and Employees, Part III, Chapter 112,

Florida Statutes, while serving as Division Chief of the

Department’s Emergency Medical Services Division.

5. Respondent is subject to the provisions of Subsection

112.313(6), Florida Statutes, for his acts or omissions during

his tenure as Division Chief of the Department’s Emergency

Medical Services (“EMS”) Division. As a Division Chief for the

Department, Respondent is subject to laws, rules and regulations

governing County employees, including State ethics laws and

County and Department rules and regulations regarding nepotism,

hiring, promotion, and advancement of employees within the

Department.

6. As a Division Chief for the Department, Respondent was

expected to be familiar with State ethics laws and County and

Department rules and regulations regarding nepotism, hiring,

promotion, and advancement of employees within the Department.

7. In February 1999, there was a vacancy for the position

of Emergency Medical Services Officer in Charge (“EMS-OIC”)

within the Department.

8. The EMS-OIC position is a second-in-command staff

position within the Department’s EMS division that reports

directly to the EMS Division Chief.

9. The EMS-OIC position is a position subject to the terms

and conditions of the Collective Bargaining Agreement between

Miami-Dade County and the Dade County Association of Fire

Fighters, Local 1403 ("the Union").

10. Vacancies for Department positions subject to the

Collective Bargaining Agreement are filled by a process known as

the “bid system.” Applicants for vacancies submit "bids,"

listing in order of preference, positions for which they are

applying.

11. The bid system is a method administered by the

Department that allows Department employees to vie for positions

on a competitive basis. Most operational positions are filled

based purely on seniority, but the higher level staff positions,

such as the EMS-OIC position, are usually filled after comparing

qualifications. The job description for the particular vacancy

listed in the Position Vacancy Announcement outlines the

criteria, certifications, and requirements for a position.

12. Division Chiefs are responsible for the content of job

descriptions for vacancies within their respective divisions for

inclusion in the Position Vacancy Announcement.

13. As Division Chief of the Department’s EMS Division,

Respondent was responsible for reviewing the job description for

the EMS-OIC Position already on file with the Department and

making any appropriate changes.

14. The Position Vacancy Announcement is compiled twice a

year and contains job descriptions for vacancies submitted by

the various Department Division Chiefs for positions within

their divisions.

15. Article 14.3 of the Collective Bargaining Agreement

provided as follows:

Where Department requirements provide for an

evaluation of applicants [sic]

qualifications, evaluation of job

performance, written test, and demonstrated

abilities to perform in the position sought,

qualifications will be relevant to the

position bided. A written description of

those qualifications will be provided to

Local 1403, two (2) weeks prior to the bid

announcement. The same criteria will be

applied equally to each bidder in

establishing the relative ranking. Time-in-

grade will be a major consideration in

making selections among those bidding. If

all qualifications are equal, the most

senior person will receive the award. In

the event employees were hired or promoted

on the same date, time-in-grade seniority

for bid purposes will be determined by the

employee’s position on the eligibility list.

16. Pursuant to the written policies and procedures of the

Department, the Fire Chief is the Director of the Department and

is vested with the authority to hire, promote, transfer, and

assign individuals to positions within the Department.

17. It is the long-standing custom and practice of the

Department for its Division Chiefs to make the initial selection

regarding the best applicant among those bidding for staff

positions within their divisions.

18. The Department’s Director, Fire Chief R. David

Paulison, expects his Division Chiefs to recommend to him their

choice from applicants who apply for staff level positions such

as the EMS-OIC position.

19. By virtue of his position as EMS Division Chief,

Respondent would have been delegated the initial responsibility

of selecting the person to fill the EMS-OIC Position, subject to

approval by the Fire Chief.

20. All bids are "worked" at a bid working meeting of

Division Chiefs and select administrative personnel. In

addition to Respondent’s authority to recommend by virtue of his

position as Division Chief, the evidence also suggested that

Respondent and other participants of the group at the bid

working meeting were expected to provide input into the process

and deliver a solution in the form of recommendations to fill

the job vacancies.

21. There are three different criteria for selecting

individuals to fill position vacancies within the Department.

Most operations vacancies are filled based solely on seniority.

For vacancies in Rescue, as Driver Operators, at the airport, on

the Air Truck, and in a Hazardous Materials Unit, applicants

must meet certain minimum qualifications, such as having a

particular certification or driver's license. Of the applicants

having the minimum qualifications, the most senior applicant

will be selected. The overwhelming majority of positions are

filled using these two criteria. The position vacancy at issue

in this case, EMS-OIC, is a forty-hour administrative staff

position, and unlike the other position vacancies mentioned, is

allowed to be awarded based on a third criteria, the most

qualified applicant.

22. The position vacancy announcement for the EMS-OIC

position issued by the Department on February 12, 1999

(effective February 22, 1999 ), provided as follows:

This Position is responsible to the EMS

Division Chief for the coordination of on-

going operational training activities of the

EMS Bureau and will replace the Division

Chief in his absence. It is an

administrative staff position responsible

for planning, organizing and implementing

various activities of the Division to

include the direct supervision of 12 EMS

Captains and 2 EMS research and development

lieutenants. The EMS-OIC will ensure that

all EMS related training needs are met for

the license re-certification of all

paramedics and EMTs. This position will

also serve as the liaison with other Fire

Departments, EMS Bureaus, physicians and

hospitals, and will assist the EMS Division

Chief in systems research, operational

analysis, budget preparation, managing

division projects and serve as Protocol

Committee Chairman.

Qualifications: Requires State Paramedic

Certification and Fire Department Protocol

Certification. Must currently hold the rank

of Chief Fire Officer.

Persons seeking this position must have

knowledge of applicable HRS rules and

regulations; possess strong verbal and

written communication skills; demonstrate a

comprehensive understanding of department

EMS policies and procedures and be able to

effectively prioritize and organize work

assignments. Familiarity or experience in

the development of organizational policies,

standard operating procedures and medical

and/or administrative protocols is a must.

Proficiency in the use of personal computer

is a requirement of the position.

A resume of any training, experience,

education or certification and a summary of

practical experience that can serve to

substantiate the skills, knowledge and

abilities listed for the position must be

attached to the Assignment Preference Form

for consideration when awarding the bid.

Preference will be given to the most

qualified applicant.

The work schedule for this position is four

10-hour days per week.

The new roles and responsibilities of this

position require that interested personnel

meet with the Emergency Medical Services

Division Chief prior to the bids being

awarded. This may be accomplished by phone

if necessary. The purpose of this meeting

will be to answer any questions the bidder

may have, discuss the direction and

philosophy of the EMS Division and discuss

the knowledge, skills and abilities of the

applicant. The EMS Division Chief will meet

with the bidder on duty if needed. Please

call between 8AM and 4PM to schedule this

interview.

23. Some time prior to the bid working meeting, perhaps

several months, Respondent learned from his brother, David

James, who was also a Department employee, that David James was

going to bid the EMS-OIC position vacancy. Respondent was

knowledgeable of anti-nepotism and ethics laws ; and recognizing

that this presented a potential conflict, Respondent advised his

immediate superior, Chief James J. Brown, of the potential

conflict. This was done by a telephone conversation, by e-mail,

or both. In the same conversation, Respondent reminded Chief

Brown of previous conversations they had had regarding David

James' involvement in two previous bids for the same position.

In the previous bids, both Respondent and David James believed

that David James had not been treated fairly.

24. After being notified of the potential conflict,

Respondent and Chief Brown agreed that Chief Brown would make

the selection for the EMS-OIC position vacancy. Neither told

Fire Chief Paulison that Chief Brown, instead of Respondent, was

going to make the selection for the EMS-OIC position vacancy.

25. The EMS-OIC position was an advancement or promotion

over the job that David James held at the time. It was a

coveted position that allowed those who held it to be paid more

than a Division Chief . It had more responsibility and

administrative duties, and paid approximately $5,000 a year more

than the position that David James held at that time.

26. In March 1999, David James, Aubrey Fisher and Ronald

Adkinson, who were all Department employees at the time,

submitted applications consisting of Assignment Preference

Sheets with attached résumés (collectively “bids”) for the EMS-

OIC position vacancy.

27. After the bids were submitted, but prior to the bid

award, David James and Aubrey Fisher contacted Respondent and

Respondent discussed with them the duties of the position and

answered questions the two applicants had. Respondent did not

review the résumés of any EMS-OIC position vacancy applicant.

Respondent explained at the final hearing that since he took

himself out of the process, there would be no need to review

applicants’ résumés.

28. Although Respondent talked with Aubrey Fisher and

David James, Respondent did not conduct an interview with them

to discuss their knowledge, skills, and abilities in connection

with their applications for the EMS-OIC position as provided in

the job description. In Respondent’s view, an interview to

discuss the knowledge, skills and abilities of the applicants

was not necessary. Respondent was personally familiar with both

David James and Aubrey Fisher.

29. Respondent testified that he did not tailor the

interview process to avoid nepotism, but rather conducted his

discussions with the applicants in accordance with his

experience as a Division Chief who conducts prebid interviews.

30. The process in which position vacancies within the

Department are awarded, including the EMS-OIC position vacancy,

is known as the “bid awards process.” As part of this process,

the “bid working meeting” is held at the Department where

decisions regarding which applicants have been selected to fill

the various vacancies are announced. Bid worksheets are then

prepared at this meeting, listing the applicants chosen, which

are then submitted to the Fire Chief. The official certified

bid awards list is issued upon approval of the Fire Chief.

31. On February 22, 1999, a memorandum was distributed to

all of the Department’s Division Chiefs, including Respondent,

announcing that the bids would be “worked” on Thursday,

March 11, at 8:00 a.m. in the Director’s Conference room, and

stating, in part, that “Division representatives must be on time

and have authority to make decisions without counsel on who will

be awarded a bid for their Division.”

32. On the morning of March 11, 1999, Chief Brown

approached Respondent at the bid working meeting and asked him,

"How was the selection process made, was it seniority or was it

most qualified?" This surprised Respondent because it indicated

to him that Chief Brown had not read the Position Vacancy

Announcement.

33. Prior to the start of the bid working meeting, Chief

Brown reviewed the résumés submitted by Aubrey Fisher, David

James, and Ronald Adkinson for the EMS-OIC position vacancy.

After reviewing the résumés, Chief Brown determined that all

three applicants were essentially equally qualified. So he

"fell back on what had been the determining factor in a lot of

situations, that was seniority," and awarded the EMS-OIC

position to the most senior, Aubrey Fisher.

34. The bid working meeting began at 8:00 a.m. on the

morning of March 11, 1999, in the Director’s conference room.

There were approximately 12 to 25 people at the bid working

meeting, including : Respondent; Special Assistant John Moore,

who was coordinating the meeting; Management Representative

Patricia Frosch; Labor Representative Stan Hills; a number of

Division Chiefs; and others who had an interest in the bid

process. Moments before the bid working meeting began, Chief

Brown told John Moore of his decision and asked John Moore to

make the announcement at the meeting. Chief Brown then left the

room.

35. At the beginning of the bid working meeting, John

Moore told the individuals filling out the bid worksheets of

Chief Brown’s selection of Aubrey Fisher to fill the EMS-OIC

position. Respondent only heard the announcement “out of one

ear” because he was not really paying attention, but rather was

reading a newspaper.

36. Realizing that Aubrey Fisher had been selected,

Respondent stated to those present that he had a problem with

Aubrey Fisher’s selection. Respondent became visibly angry and

upset and stated words to the effect that his brother had been

"cheated" or "screwed" again.

37. Patricia Frosch, left the room, found Chief Brown, and

brought Chief Brown back into the room, whereupon Respondent

told Chief Brown that his decision was wrong, and asked how the

bid had been assigned. Someone suggested that Respondent and

Chief Brown take their discussion out of the conference room,

which they did.

38. Respondent and Chief Brown continued their discussion

during which Respondent mentioned the qualifications of his

brother. Chief Brown told Respondent that, based upon his

review of the résumés, the applicants were equally qualified,

and that when two people were equally qualified, the position

goes to the senior person. But Respondent stated, “J.J., that’s

ridiculous, David has a bachelor’s degree in public

administration, he’s been a Division Chief of numerous areas

within this Department and has served those positions well. He

has numerous seminars. He’s taught at the Executive Development

Academy for the International Association of Black Fire

Fighters, he has a number of years in the area in finance.

J.J., excuse me, Fisher can’t hold a candle to this man.” Chief

Brown believed Respondent was sincere in his belief that the

rules had been improperly applied and that the most qualified

applicant had not been selected.

39. Respondent attended the bid working meeting in his

official capacity as a Division Chief.

40. If not for Respondent’s official position as a

Division Chief and the respect Chief Brown had for Respondent,

Respondent would not have had an opportunity to challenge Chief

Brown’s decision at the time or in the manner in which he did.

41. Chief Brown gave Respondent’s comments more credence

because Respondent was the EMS Division Chief and because he and

Respondent had served together for more than twenty years and he

knew Respondent to be a sincere, good, "by the book," man.

Respondent’s comments affected Chief Brown’s decision to

recommend Aubrey Fisher and caused Chief Brown to refer the

matter to Fire Chief Paulison.

42. By his comments to Chief Brown, Respondent was clearly

advocating for the selection or recommendation of his brother

over the selection or recommendation of Aubrey Fisher. With the

exception of his momentary outburst at the bid working meeting

and following discussion with Chief Brown, Respondent made no

other attempts to advocate the selection or recommendation of

his brother.

43. Respondent believed that his comments to Chief Brown

were directed to the fact that the bid award was not made to the

most qualified applicant as required by the terms of the

Position Vacancy Announcement.

44. Chief Brown eventually stated that if Respondent felt

that strongly about it he would take the issue to the Fire

Chief. In response, Respondent said something to the effect of,

“That’s all I want.”

45. Chief Brown then took the issue to Fire Chief

Paulison. At that time, Chief Brown did not tell the Fire Chief

that he recommended Aubrey Fisher. Rather, he told the Chief

that there was a controversy between the selection of Aubrey

Fisher and David James.

46. Respondent did not return to the bid working meeting,

as he had no other vacant positions in the EMS division.

Respondent then telephoned his brother and advised him that

Chief Brown had recommended Aubrey Fisher for the EMS-OIC

position vacancy.

47. After considering the three applications with staff,

Chief Paulison decided that David James was the most qualified

and gave the job to Respondent’s brother, David James.

48. If Respondent had not challenged Chief Brown’s

decision to recommend Aubrey Fisher on March 11, 1999, there is

a probability that Chief Brown’s recommendation would have stood

and Aubrey Fisher would have been selected to fill the EMS-OIC

position vacancy. Recommendations from the bid working meeting

are generally accepted by the Fire Chief.

CONCLUSIONS OF LAW

49. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. Subsection 120.57(1), Florida Statutes.

50. Section 112.322, Florida Statutes, and Rule 34-5.0015,

Florida Administrative Code, authorize the Florida Commission on

Ethics to conduct investigations and to make public reports on

complaints concerning violations of Part III, Chapter 112,

Florida Statutes (the Code of Ethics for Public Officers and

Employees).

51. The burden of proof, absent a statutory directive to

the contrary, is on the party asserting the affirmative of the

issue of the proceedings. Department of Transportation v.

J.W.C. Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981) ; Balino v.

Department of Health and Rehabilitative Services , 348 So. 2d 349

(Fla. 1st DCA 1977). In this proceeding, it is the Commission,

through its Advocate, that is asserting the affirmative: that

Respondent violated Subsections 112.3135(2)(a) and 112.313(6),

Florida Statutes. Therefore, the burden of establishing by

clear and convincing evidence the elements of Respondent’s

violations is on the Commission.

52. As noted by the Supreme Court of Florida:

[C ]lear and convincing evidence requires

that the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; the

testimony must be precise and explicit and

the witnesses must be lacking in confusion

as the to facts in issue. The evidence must

be of such weight that it produces in the

mind of the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

In Re : Davey , 645 So. 2d 398, 404 (Fla. 1994), quoting

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

53. Subsection 112.3135(2)(a), Florida Statutes, provides

in its pertinent part as follows:

A public official may not appoint,

employ, promote, or advance, or advocate for

appointment, employment, promotion, or

advancement, in or to a position in the

agency in which the official is serving or

over which the official exercises

jurisdiction or control any individual who

is a relative of the public official. An

individual may not be appointed, employed,

promoted, or advanced in or to a position in

an agency if such appointment, employment,

promotion, or advancement has been advocated

by a public official, serving in or

exercising jurisdiction or control over the

agency, who is a relative of the individual

or if such appointment, employment,

promotion, or advancement is made by a

collegial body of which a relative of the

individual is a member.

54. In order to establish a violation of Subsection

112.3135(2)(a), Florida Statutes, the following elements must be

proved:

1. Respondent must have been a public

officer or employee in whom was vested the

authority by law, rule or regulation, or to

whom the authority had been delegated, to

appoint, employ, promote or advance

individuals or to recommend individuals for

appointment, employment, promotion or

advancement in connection with employment in

an agency, including the authority as a

member of a collegial body to vote on the

appointment, promotion or advancement of

individuals employed by Respondent's agency.

2. Respondent must have appointed,

employed, promoted or advanced, or advocated

for appointment, employment, promotion or

advancement, a relative of Respondent.

3. Such appointment, employment, promotion

or advancement, or advocacy for same, must

have been in or to a position in the agency

in which Respondent was serving or over

which Respondent exercised jurisdiction or

control.

55. It is clear that David James was a “relative” of

Donald James. Subsection 112.3135(1)(d), Florida Statutes

(“brother” included in definition of “relative”).

56. Both Respondent and his brother, David, were employees

of Miami-Dade County which is an “agency” within the meaning of

Subsection 112.3135(2)(a), Florida Statutes. Subsection

112.3135(1)(a )4, Florida Statutes (“county” included in

definition of “agency”).

57. Respondent was the EMS Division Chief within the

Department and thus serving in or exercising control over the

“agency” in which his brother, David James, had applied for the

EMS-OIC position.

58. The EMS-OIC position for which David James applied was

an advancement or promotion. It was a coveted position within

the Department that allowed those who held it to make more than

a Division Chief . It had more responsibility and administrative

duties, and paid approximately $5,000 a year more than the

position that David James held at that time.

59. Respondent was a “public official” within the meaning

of Subsection 112.3135(2)(a), Florida Statutes, when he made the

comments during and immediately after the bid working meeting on

March 11, 1999.

60. The term "public official" is defined by Subsection

112.3135(1)(c), Florida Statutes, as:

[A ]n officer, including a member of the

Legislature, the Governor, and a member of

the Cabinet, or an employee of an agency in

whom is vested the authority by law, rule,

or regulation, or to whom the authority has

been delegated, to appoint, employ, promote,

or advance individuals or to recommend

individuals for appointment, employment,

promotion, or advancement in connection with

employment in an agency, including the

authority as a member of a collegial body to

vote on the appointment, employment,

promotion, or advancement of individuals.

61. Within the Department, Division Chiefs have been

delegated authority and are expected to select and recommend

candidates to fill position vacancies within their division.

While not reduced to written policy, this authority is derived

from long-standing Department custom, practice and procedure.

62. Respondent initially removed himself from the

selection process reflecting appropriate concern that his

involvement would violate anti-nepotism laws. However, he did

not completely disassociate himself from the process. He

reminded Chief Brown of discussions they had previously had to

the effect that his brother had not been treated fairly in two

previous bids for the EMS-OIC position vacancy. He met with his

brother and another applicant in a meeting called for by the

EMS-OIC Position Vacancy Announcement. And, unfortunately, he

elected to attend the bid working meeting, even though the EMS-

OIC position vacancy was the only position vacancy in which his

division was involved.

63. "Advocate" is not defined in the statute, but, its

meaning is clear and unambiguous. "Advocate" is defined in the

American Heritage Dictionary (2000) as "to speak, plead, or

argue in favor of." If statutory terms are to be given their

ordinary meaning as stated in City of Miami Beach v. Galbut , 626

So. 2d 192, 193 (Fla 1993) then Respondent clearly advocated for

his brother in the interaction he had with Chief Brown after

Respondent learned that Chief Brown had not recommended his

brother for the EMS-OIC position vacancy.

64. Even though he had ostensibly removed himself from the

selection process, by attending the bid processing meeting,

challenging Chief Brown's decision and advocating his brother

for the EMS-OIC position vacancy, Respondent clearly reasserted

the delegated power to promote or advance he had as a Division

Chief.

65. Also relevant to these proceedings is Subsection

112.313(6), Florida Statutes, which provides:

MISUSE OF PUBLIC POSITION. No public

officer, employee of an agency, or local

government attorney shall corruptly use or

attempt to use his or her official position

or any property or resource which may be

within his or her trust, or perform his or

her official duties, to secure a special

privilege, benefit, or exemption for

himself, herself, or others. This section

shall not be construed to conflict with

Section 104.31.

66. The term "corruptly" is defined by Subsection

112.312(9), Florida Statutes, as follows:

"Corruptly" means done with a wrongful

intent and for the purpose of obtaining, or

compensating or receiving compensation for,

any benefit resulting from some act or

omission of a public servant which is

inconsistent with the proper performance of

his or her public duties.

67. In order to establish a violation of Subsection

112.313(6), Florida Statutes, the following elements must be

proved:

1. Respondent must have been a public

officer or employee.

2. Respondent must have:

(a) used or attempted to use his

official position or any property or

resources within his trust,

(b) performed his official duties.

3. Respondent’s actions must have been

taken to secure a special privilege, benefit

or exemption for himself or others.

4. Respondent must have acted corruptly,

that is with wrongful intent and for the

purpose of benefiting himself or another

from some act or omission which was

inconsistent with the proper performance of

public duties.

68. Respondent is an employee of an agency that is subject

to the provisions of Subsection 112.313(6), Florida Statutes,

for his acts or omissions during his tenure as Division Chief of

the Department’s EMS Division.

69. Respondent attended the bid working meeting in his

capacity as a Division Chief. As a result of his advocacy for

his brother, he reinserted himself into the selection process.

70. It has not been proved by clear and convincing

evidence that Respondent acted corruptly, that is, with wrongful

intent. Upon hearing that his brother had not been selected for

the EMS-OIC position vacancy, Respondent had a sudden, emotional

reaction. Given his belief that his brother was the most

qualified applicant, that he felt that his brother had been

unfairly treated in two previous bids, Chief Brown's inquiry

moments before the bid working meeting indicating that he had

paid little attention to the responsibility of making a

selection, Respondent's reaction was not surprising. Respondent

challenged Chief Brown's decision in a sincere belief that the

proper selection procedure had not been followed, in that the

most qualified applicant had not been selected as required by

the terms of the Position Vacancy Announcement. In so doing,

he, in fact, advocated his brother for promotion, but there has

been no clear and convincing evidence that he intended to

advocate for his brother's promotion and that his comments to

Chief Brown were made "corruptly." Respondent's overt response

to learning that his brother had not received the bid and his

open discussion with Chief Brown are inconsistent with wrongful,

corrupt acts. In addition, Respondent initiated his own removal

from the selection process and conducted himself appropriately

until the morning of the bid working meeting.

71. The maximum penalty that can be imposed for each of

Respondent’s violations is a civil penalty of $10,000, public

censure and reprimand, dismissal from employment and forfeiture

of no more than one-third of his salary per month for no more

than 12 months. Section 112.317, Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is:

RECOMMENDED that a final order and public report be entered

finding that Respondent, Donald James, violated Subsection

112.3135(2)(a), Florida Statutes, imposing a civil penalty of

$2,500 for Respondent’s violation of the anti-nepotism

provisions found in Subsection 112.3135(2)(a), Florida Statutes,

reprimanding him for the violation, and finding that Respondent

did not violate Subsection 112.313(6), Florida Statutes, and

dismissing that charge.

DONE AND ENTERED this 27th day of August, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of August, 2001.

COPIES FURNISHED :

Kaye Starling, Agency Clerk

Florida Commission on Ethics

2822 Remington Green Circle, Suite 101

Post Office Box 15709

Tallahassee, Florida 32317-5709

James H. Peterson, III, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

David Rothman, Esquire

Jeanie Melendez, Esquire

Thornton & Rothman, P.A.

200 South Biscayne Boulevard

First Union Financial Center, Suite 2690

Miami, Florida 33131

Phillip C. Claypool, General Counsel

Florida Commission on Ethics

2822 Remington Green Circle

Post Office Drawer 15709

Tallahassee, Florida 32317-5709

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.